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Lobo v. Tamco
California Court of Appeal
Fourth Appellate District
2010 DJDAR 2827
On February 24, 2010, the California Court of Appeal issued an opinion in Lobo v. Tamco, analyzing an employer’s liability under the theory of respondiat superior where an employee was allegedly negligent in causing an automobile accident while driving home from work in his personal vehicle.
Luis Del Rosario, an employee of Tamco, had left Tamco’s premises in his own personal vehicle when he failed to notice three motorcycle deputies approaching with lights and sirens activated. San Bernardino County deputy sheriff Daniel Lobo was killed when he was unable to avoid colliding with Del Rosario’s vehicle. Lobo’s survivors brought a wrongful death action against Tamco, arguing that Del Rosario acted within the course and scope of his employment when the accident occurred. Tamco brought a motion for summary judgment, arguing that Del Rosario was not acting within his employment, but rather was on his way home from work in his own vehicle. The trial court granted the motion and dismissed Tamco.
The Court of Appeal reversed, after analyzing an exception to the “going and coming” rule. Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. However, the “going and coming” rule states that employers are not liable for torts committed by employees while on their way home from work, because employees are said to be outside of the course and scope of employment during their daily commute. An exception to the “going and coming” rule arises where the use of the car gives some incidental benefit to the employer, and is referred to as the “required-vehicle” exception. The exception may apply if the use of a personally owned vehicle is either an express or implied condition of employment, or the employee makes his car available as an accommodation to the employer which the employer has come to reasonably rely on.
Here, the evidence showed that Del Rosario was employed by Tamco (a steel bar manufacturer) as manager of quality control, which occasionally requires him to visit customer sites to answer questions and maintain customer relations. Tamco did not have a vehicle for this purpose, and Del Rosario would use his personal vehicle, with Tamco reimbursing him for mileage. Although Del Rosario testified that he had made such customer site visits 10 times or fewer in his 16 years of employment, the Court found that this was sufficient to support the conclusion that Tamco requires Del Rosario to make his car available as part of his employment and that Tamco derives a benefit from the availability of the vehicle.
The Court reversed the trial court’s judgment of dismissal, rejecting Tamco’s argument that the required-use exception to the “going and coming” rule depends upon a finding that the employee regularly used his or her vehicle for work, that the job “embraced” driving or that driving formed an “integral part” of the job.
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